From:
Verity
To:
OAIC - FOI DR
Subject:
[WARNING: ATTACHMENT UNSCANNED]Re: MR18/00860 - Your application for IC review [SEC=OFFICIAL]
Date:
Tuesday, 12 July 2022 12:56:36 PM
Attachments:
image002.png
image003.png
image001.jpg
image004.png
image005.png
CAUTION: This email originated from outside of the organisation. Do not click links or open
attachments unless you recognise the sender and know the content is safe.
My response to delegate Carl English’s fraudulent characterisation that there is nothing to
review in MR18/00860 is that this is patently untrue.
- MR18/00860 is about an FOI made to DVA on 27 September 2018, that was subject to a
series of untenable access refusal actions, for which complaints about that conduct and
those decisions were made
- The ICR application was made on 2 November 2018, after DVA again imposed an
inflated untenable charge in a sustained practice of using such charges to artificially delay
and deny access
- The ICR application was a mixed s 70 complaint and review of decision application
- The OAIC, seeking to avoid making an ICR decision, warned DVA on 10 May 2019 that
if it did not review its charges decision it would proceed to making an adverse public
decision - DVA revised but did not withdraw its charges
- The OAIC again foreshadowed to DVA in early 2022 that if the charges were not
withdrawn, a public adverse decision may be published, leading to the withdrawal of
charges on 23 February 2022—more than 3 years after the FOI was made
- DVA did not provide copy of their decision or release any documents to me at my
address for notices, instead only to the OAIC
- I had to chase the OAIC to get a copy, which was not provided until 18 March 2022—3
years 5 months 19 days after my FOI was made
- As the ICG clearly states that were an ICR consists of both a merits review and a
complaint about actions taken or not taken by an agency under the FOI Act, then the
Commissioner’s view is that the complaint about actions directly related to the access
refusal review will be dealt with as part of that ICR
- The withdrawal of untenable charges after creating over 3 years of intentional delay by
DVA does not make, as Carl English had fraudulently claimed, that there is nothing to
review anymore
- An FOI agency knowingly continuing to use inflated charges to delay access, as a
unethical barrier, for years (even when warned by the OAIC that the charges were
untenable) is a reviewable matter by the IC given it was part of the ICR
Verity
On Mon, Jul 11, 2022 at 4:29 pm, ENGLISH,Carl <xxxx.xxxxxxx@xxxx.xxx.xx> wrote:
Our reference: MR18/00860
Agency reference: LEX 44871
Ms Verity Pane
By email: s22(1)(a)(ii)
Your application for Information
Commissioner review of the
Department of Veterans' Affairs
Dear Ms Pane
I write to you in relation to your IC review application of a charges decision
made by the Department of Veteran’s Affairs on 2 November 2018. I
apologise for the delay writing to you about this matter.
Please find correspondence about your IC review application attached.
Kind regards
Carl English | Review Adviser (Legal)
Reviews
Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001
| oaic.gov.au
+61 2 9942 4169
| xxxx.xxxxxxx@xxxx.xxx.xx
|
|
|
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal professional
privilege. If you are not the intended recipient any use, disclosure or copying
of this email is unauthorised. If you received this email in error, please notify
the sender by contacting the department's switchboard on 1300 488 064 during
business hours (8:30am - 5pm Canberra time) and delete all copies of this
transmission together with any attachments.
On 23 February 2022, the Department notified the OAIC that it had made a further revised
decision to waive the charge.
On 18 March 2022, the OAIC provided you with a copy of the decision.
On 11 July 2022, the OAIC review adviser with carriage of this matter, Mr Carl English, wrote
to you to advise you of their intention to recommend to the delegate of the Information
Commissioner that your application for IC review be finalised under s 54W(a)(i) of the FOI Act
on the basis that your IC review application is lacking in substance and invited you to
provide reasons if you disagreed with the proposed finalisation of your IC review.
On 12 July 2022, you responded to Mr English’s advice and provided submissions.
Scope of IC review
The issue in this IC review is whether the Department should have exercised its discretion to
impose a charge under s 29 of the FOI Act.
In forming my view as review adviser, I have had regard to the following:
• the Department’s charges notice dated 24 October 2018
• the Department’s charges decision and reasons for decision dated 2 November 2018
• the Department’s revised decision and reasons for decision dated 31 May 2019
• the Department’s revised decision and reasons for decision dated 13 February 2022
waiving the charge in full (the decision under review)
• the FOI Act, in particular ss 29, 53A, 55G and 54W
• your submissions.
IC reviewable decision
Section 53A of the FOI Act defines an ‘access refusal decision’ to include:
…
(e) a decision under section 29 relating to imposition of a charge or the amount of a charge;
…
Section 55G of the FOI Act states:
Procedure in IC review--revocation or variation of access refusal decision
(1) An agency or Minister may vary (or set aside and substitute) an access refusal decision (the
original decision) in relation to a request or an application under section 48 at any time
2
during an IC review of the access refusal decision if the variation or substitution (the revised
decision) would have an effect of:
(a) giving access to a document in accordance with the request; or
(b) relieving the IC review applicant from liability to pay a charge; or
(c) requiring a record of personal information to be amended or annotated in
accordance with the application.
…
(2) If an agency or Minister varies (or sets aside and substitutes) an access refusal decision
under subsection (1):
(a) the agency or Minister must, in writing, notify the Information Commissioner as soon as
practicable after the agency or Minister makes the variation or substitution; and
(b) the Information Commissioner must deal with the IC review application for
review of the original decision as if it were an IC review application for the review of
the varied or substituted decision, subject otherwise to this Part.
Your submissions
In your submissions, you said:
My response to delegate Carl English’s fraudulent characterisation that there is nothing to
review in MR18/00860 is that this is patently untrue.
- MR18/00860 is about an FOI made to DVA on 27 September 2018, that was subject to a series
of untenable access refusal actions, for which complaints about that conduct and those
decisions were made
- The ICR application was made on 2 November 2018, after DVA again imposed an inflated
untenable charge in a sustained practice of using such charges to artificially delay and deny
access
- The ICR application was a mixed s 70 complaint and review of decision application
- The OAIC, seeking to avoid making an ICR decision, warned DVA on 10 May 2019 that if it did
not review its charges decision it would proceed to making an adverse public decision - DVA
revised but did not withdraw its charges
- The OAIC again foreshadowed to DVA in early 2022 that if the charges were not withdrawn, a
public adverse decision may be published, leading to the withdrawal of charges on 23
February 2022—more than 3 years after the FOI was made
- DVA did not provide copy of their decision or release any documents to me at my address for
notices, instead only to the OAIC
- I had to chase the OAIC to get a copy, which was not provided until 18 March 2022—3 years 5
months 19 days after my FOI was made
3
- As the ICG clearly states that were an ICR consists of both a merits review and a complaint
about actions taken or not taken by an agency under the FOI Act, then the Commissioner’s
view is that the complaint about actions directly related to the access refusal review will be
dealt with as part of that ICR
- The withdrawal of untenable charges after creating over 3 years of intentional delay by DVA
does not make, as Carl English had fraudulently claimed, that there is nothing to review
anymore
- An FOI agency knowingly continuing to use inflated charges to delay access, as a
unethical barrier, for years (even when warned by the OAIC that the charges were untenable)
is a reviewable matter by the IC given it was part of the ICR
Consideration of the issues
The Department’s charges decision of 2 November 2018 is an access refusal decision for the
purposes of the FOI Act and you were able to apply for IC review (under s 54L of the FOI Act).
On 13 February 2022, the Department made a revised decision to waive the charge in full
under s 55G(1)(b) of the FOI Act.
By operation of s 55G(2)(b) of the FOI Act, your IC review application becomes an application
for review of the Department’s revised decision of 13 February 2022 to waive the charge.
The issue under consideration in this IC review was whether the Department, having decided
to impose a charge under s 29(1) of the FOI Act, should exercise its discretion to reduce or
impose the charge under s 29(4) of the FOI Act. That issue has been resolved as the
Department made a revised decision on 13 February 2022 to relieve you from liability to pay
a charge (s 55G(1)(b) of the FOI Act).
Discretion not to continue to undertake an IC review
I am a delegate of the Information Commissioner.
Under s 54W(a) of the FOI Act, the Information Commissioner may decide not to undertake a
review, or not to continue to undertake a review, if the Information Commissioner is satisfied
that the IC review application is frivolous, vexatious, misconceived, lacking in substance or
not made in good faith.
I have had regard to:
• the Department’s charges notice dated 24 October 2018
• the Department’s charges decision and reasons for decision dated 2 November 2018
• the Department’s revised decision and reasons for decision dated 31 May 2019
4
• the Department’s revised decision and reasons for decision dated 13 February 2022
waiving the charge in full (the decision under review)
• the FOI Act, in particular ss 29, 53A, 55G and 54W
• your submissions.
In deciding whether to exercise the discretion not to continue to undertake a review, I have
considered:
• Based on the information before me, including the Department’s revised decision dated
13 February 2022, the legislative framework and guidelines and your submissions, I am
satisfied that the issue under consideration in this IC review has been resolved
• Continuing to review this matter will not promote the objects of the FOI Act or be an
efficient or effective use of the OAIC’s resources.
Based on the information before me, I am satisfied that the issue under consideration in this
IC review was whether the Department, having decided to impose a charge under s 29(1) of
the FOI Act, should exercise its discretion to reduce or impose the charge under s 29(4) of the
FOI Act. That issue has been resolved as the Department made a revised decision on
13 February 2022 to relieve you from liability to pay a charge (s 55G(1)(b) of the FOI Act).
On this basis, I am satisfied that the matter is lacking in substance.
For these reasons, as a delegate of the Information Commissioner, I have decided not to
continue to undertake a review of your application under s 54W(a)(i) of the FOI Act. I confirm
that this IC review is now closed. Your review rights are set out below.
If you would like to discuss this matter, please contact Carl English on (02) 9942 4169 or on
xxxx.xxxxxxx@xxxx.xxx.xx. In all correspondence please quote MR18/00860.
Yours sincerely
Justin Lodge
Director
Freedom of Information
29 July 2022
5
Review rights
Judicial review
You can apply to the Federal Court of Australia or the Federal Circuit Court for a review of a
decision of the Information Commissioner if you think that a decision by the Information
Commissioner not to review or not to continue to undertake review of your IC review
application under the
Freedom of Information Act 1982 (the FOI Act) is not legally correct. You
can make this application under the
Administrative Decisions (Judicial Review) Act 1977.
The Court will not review the merits of your case but it may refer the matter back to the
Information Commissioner for further consideration if it finds the decision was wrong in law
or the Information Commissioner's powers were not exercised properly.
An application for review must be made to the Court within 28 days of the OAIC sending the
decision or determination to you. You may wish to seek legal advice as the process can
involve fees and costs. Please contact the Federal Court registry in your state or territory for
more information, or visit the Federal Court website at http://www.fedcourt.gov.au/.
Making a complaint to the Commonwealth Ombudsman
If you believe you have been treated unfairly by the OAIC, you can make a complaint to the
Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The
Ombudsman can investigate complaints about the administrative actions of Australian
Government agencies to see if you have been treated unfairly.
If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that
the OAIC reconsider or change its action or decision or take any other action that the
Ombudsman considers is appropriate. You can contact the Ombudsman's office for more
information on 1300 362 072 or visit the Commonwealth Ombudsman’s website at
http://www.ombudsman.gov.au.
6
